Haag v. Haag

• Decision Date: 25 May 1959
• Docket Number: No. 19288,19288
• Citation: 158 N.E.2d 800
• Parties: Verne E. HAAG, Appellant, v. Greta L. HAAG, Appellee. *
• Court: Indiana Appellate Court

Page 800

158 N.E.2d 800

Verne E. HAAG, Appellant, v. Greta L. HAAG, Appellee. ^*

No. 19288.

Appellate Court of Indiana, In Banc.

May 25, 1959.

George Sands, South Bend, for appellant.

Leon E. Kowalski, South Bend, for appellee.

COOPER, Chief Judge.

This matter comes before us on a Motion to Dismiss by the appellee.

It is the appellee's position that the Order appealed from was interlocutory in nature, and, therefore, it was incumbent upon the appellant herein to file his briefs within ten days after submission, as provided for by Rule 2-15 of the Supreme Court of Indiana.

It is the appellant's contention that the appellee has waived all technical defects in both the record and the appellant's brief for the reason that the cause was submitted on January 9, 1959, and, on February 4, 1959, and within thirty (30) days, the appellant filed his brief; on February 11, 1959, appellee appeared and filed a Motion for Certiorari, and, on February 12, 1959, the appellee filed his Motion to Dismiss the appeal and also on the same date, filed a Petition for Extension of Time within which to file the appellee's brief.

We cannot agree with the appellant's position in this matter for the following reasons:

In the record before us it affirmatively appears that the transcript was filed with the Clerk of this Court on January 9, 1959. The record further reveals that the appellant's brief was not filed with the Clerk of this Court until on February 4, 1959.

The appellant's assignment of error is as follows:

'That the Court erred in refusing to grant and in denying appellant's verified application to set aside and vacate order for support of child.'

This, of course, could only be an appeal from an interlocutory order.

Our Supreme Court has said in the case of State ex rel. Davis v. Achor, 1947, 225 Ind. 319, 326, 75 N.E.2d 154, 157:

'An order for custody of the children made in granting a divorce, cannot anticipate the changes that may occur in the conditions of the parents, or in their habits, character and fitness to have the custody and care of the children. Changes in conditions and other causes may make it necessary for the good of the children that their custody be changed. Such orders therefore are interlocutory in nature and subject to modification at any future time during the lives of the parents and the minority of the children upon good cause shown. Stone v. Stone, 1902, 158 Ind. 628, 631, 632, 64 N.E. 86; Zirkle v. Zirkle, 1930, 202 Ind. 129, 132, 133, 172 N.E. 192; § 3-1224, Burns' 1946 Repl. Jasper v. Tartar, Judge, supra [224 Ky. 834, 7 S.W.2d 236].' (My emphasis.)

Likewise, any order made in an application to set aside and vacate an order for the support of a minor child would also be interlocutory in nature. Our Supreme Court has held that the duty imposed upon the court to make provision for the guardianship, custody, support and education of the minor children is a duty irrespective of the issues or wishes of the parents, and springs, in a large measure, from the public interest in the proper training and education of children, and that the court has continuing jurisdiction during minority of the child to make from time to time such orders and modifications in reference to their care as are deemed expedient, and that a reservation in the decree of divorce so as to modify its order is not essential. See Stone v. Stone, 1902, 158 Ind. 628, 64 N.E. 86.

Thus, the record before us reveals that the appellant did not file his brief within ten days after the submission, as provided for by Rule 2-15 of the Supreme Court.

If the appellant's brief, in an appeal from an interlocutory order, is not filed within the ten-day period after the submission, the appeal will be dismissed. Parfenoff v. Kozlowski, 1941, 218 Ind. 154, 31 N.E.2d 206.

Our Supreme Court, in discussing prior rule 16 of the Supreme Court as it related to interlocutory orders, has said:

'The 10-day rule applying to interlocutory orders is included as part of rule 16 which fixes 30 days as the limit for appellants' brief on final appeal. This court has held that where briefs are filed one day after the time limit for filing briefs, such delay is fatal to the appeal. Leatherman et al. v. Board of Commissioners, 18...